170859336 less than any other person on earth



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05 January 2018

The right to privacy was never protected as a standalone
right under English Law and whenever there was a dispute concerning the misuse
of private information regarding someone’s life the doors of other common law
remedies such as copyright, confidentiality, defamation etc. were ringed. The
first recognition of legal protection of right to privacy can be traced to an
article authored in the 1980’s by Sameul Warren and Louis Brandeis.
Celebrities, as we tend to call famous people in the public eye, are humans, no
less than any other person on earth and are entitled to the same degree of
protection as any other person, in law. The media has always been interested in
getting juicy gossips about their professional and personal life and get it to
the likes of common people, readers like us. For a fair balance, and to curtail
the right to freedom of expression, the freedom of expression has to be
balanced against the right to privacy. However, as we see the turn of cases and
development, the balancing bar with respect to celebrities has sometimes been
seen tilting towards the direction of protection of celebrity life and their
image damage control. As much as courts have tried to rule on the importance of
freedom of expression, celebrities do end up getting some privilege, which may
also be rightly seen as being a celebrity is also at a disadvantage as much on an
advantage, as most their information, which they don’t even want should go
public, goes to the public through the media.

The English breach of confidence tort, which etched the
stepping stone for a hidden privacy action was seen in the case of Prince Albert v Strange in 1849. There
was an outright rejection to the right of privacy by the courts in Kaye v Robertson in 1991. The European Convention of Human Rights
(ECHR) was what granted express protection to very important rights being right
to privacy and right to freedom of expression. Article 8 of ECHR protects the right to respect for one’s private
and family life and Article 10 of
ECHR protects the right of freedom and expression. Until 2000, these principles
were not legally binding in the UK and it was only after the enactment of the
Human Rights Act, 2000 (HRA) that these two rights got statutory protection. The
Stratsbourg Court and UK Courts have tried to maintain balance between these
two rights in celebrity cases. After the passing of the HRA, there were
numerous cases being filed before the courts for the protection of private life
and information and for the passing of super injunction to limit the publication
of private information. In American
Cynamid v Ethicon Ltd. the courts stated the test to determine whether or
not to grant an interim relief which was that that injunction must be granted
where there existed a serious question to be tried and the claimant also needed
to establish a balance of convenience. This test was altered by the enactment
of Section 12 of the HRA, which was enacted to safeguard press freedom and keep
a check on unreasonable and irrational injunctions order being passed to
curtail the freedom of speech and expression and publications. This section
stated that such relief should not be granted until the court is satisfied that
the publication should not be allowed. The courts have been careful of this
section while striking a balance between Article 8 and Article 10, as we will see

The very first controversial celebrity case was, Douglas v Hello! Ltd. This case was
partly heard related to the breach of confidentiality but Sedley LJ primarily recognized the law of privacy and stated that
the law of privacy is intended to protect those who are subjected to an
unwanted intrusion into their personal lives. The Court also considered the
significance of Section 12 and all the convention rights. The lower courts
denied the grant of an injunction but the Court of Appeal was in favor that an
injunction should have been granted.

In re S (a Child FS),2004
case, the concept of proportionality and balance between Article 8 and Article
10 was laid down which stated that; firstly, neither article 8 or article 10
has such precedence over the other, secondly, where the values under the two
articles are in conflict, an intense focus on the comparative importance of the
specific rights being claimed in the individual case is necessary. Thirdly, the
justifications for interfering with or restricting each right must be taken
into account  and lastly the
proportionality test must to applied for each case.

The trilogy of cases footing and testing proportionality test
were Campbell v MGN Ltd. (Campbell), Von Hannover v Germany (Von) and Mosely v NGN Ltd. (Mosley). In Campbell,
the circumstances of the cases and level of intrusion into Campbell’s public
life was such that the Courts considered it as a case of misuse of private
information and analyzed stages for approaching the balance of Article 8 and
Article 10 rights. The first stage involved assessing the reasonable
expectation of privacy, owing to the circumstances in which the information was
disclosed publicly. In Murray v Express
Newspapers (Murray), it was held
that the court must take into account the circumstances like, nature of
activity the claimant was engaged in, place, purpose of intrusion, absence of
consent etc., personal relationships and sexual encounters and how far can they
be protected. If the answer to the first stage was yes then the second stage
was to balance the right of privacy against the right to freedom of speech and
expression assessing in terms that (i) the seriousness of the intrusion with
the privacy with respect to the photographs and (ii) how serious an intrusion
would it be to freedom of expression if claim to privacy succeeded. This
balance will tell if the claim should succeed or fail. Thus, since the photos
related to her health and her treatment, court considered it right to protect
her right to privacy. The media went too far as per the courts in printing her
pictures while coming out of the therapy. In Mosley’s case, which related to
information about his sexual encounters being made public, UK courts concluded
that there was no genuine public interest in the story. If media had to write
the story, they could have done it without necessary publishing the video or
pictures and probably then the freedom of expression could have prevailed. The
court in Strasbourg granted damages to Mosely but refused to grant any
injunction. The Stratsbourg court’s decision in Von’s case was greatly
criticized that it went a step back in protecting the freedom of expression
right and went a step ahead in protecting famous persons privacy right and
grant them injunction. The media accused the court of inexorably bringing in a
new privacy law by the back door, which is leading to greater restrictions on
the freedom of the press to publish stories about the rich people. This case
related to a royal persons photos being published. Balancing the right,
Stratsbourg refused injunction in Von Hannover 2 case where the images related
to princess’ ailing father were published as the public wanted to know about
the royal and were equally worried about this health.

Another important factor which the courts consider while
granting an injunction, under privacy is the children aspect. Two important
cases in this are Murray and PJS v NGN
Ltd. Murray related to Harry Potter series writer’s kids photos being
published while she took her out for a walk. She was successful in getting an
injunction to stop the publication. In
PJS, a famous celebrity couple tried to hide their threesome by asking for
an injunction from the courts to  protect
their child from reading about their parents at a later stage. The Court
balanced the rights granted under Article 8 and Article 10 and the Supreme
Court re-instated injunction stating it was necessary to protect their family
life and such level of intrusion was not needed, however famous celebrities
they may be. Celebrities have also often tried to restrict the publication of
various kiss and tell stories of theirs and rightly so because if they were not
who they are no one would have been interested in their stories. In a few cases
celebrities have also been refused injunctions such as John Terry’s case, as
the Court stated that the claimant was more concerned about protecting his commercial
reputation rather than protecting his private and family life. Likewise Rio
Ferdinand and Steve McLaren have all suffered in privacy cases, the price they
had to pay for being a public figure.

Thus, it is rightly so that the number of celebrity privacy
injunction cases have increased in recent few years but the courts have
carefully calculated the risks involved of being a celebrity and the
disadvantage associated with that and have only after that tried to strike a
balance between Article 8 and Article 10.














05 January 2018

In our daily lives, we often come across advertisements,
celebrity pictures and endorsements with respect to some products of necessity
and luxury, which may at times influence our decision to purchase that product.
This persona is created and flows from the personality of that person and the
subsequent rights that emanate from it. Personality rights simply means the
right of a person to control the use of a person’s image, name, likeness,
signature and things that are synonymous with his persona for the purposes of
preventing any misuse of the same and to monetize the same for commercial
purposes. Celebrities have often been using this right by way of contracts and
tapping economically through it. However, personality rights have not been
categorically recognized in the United Kingdom (UK) and celebrities do not have
any monopoly and protection over the use of their personality, in law. In the
absence of any clear right to exercise this right celebrities have often fallen
back to other remedies and actions available under various heads of law such as
confidentiality, passing off, copyright, defamation, law of privacy under the
Human Rights Act, 1988, trademark and others. Some of the most common heads for
bringing an action for personality rights are under the head of privacy and

Because the person is famous is the reason people wish to
copy, or use their style or bank on the goodwill of a celebrity and thus, I am
of the view that personality and image right of celebrities must be recognized
under English Law. However, I oppose for the protection of personality right of
each and every individual. Before defending and providing explanation for the
stand of opposing protection for every individual’s personality right I would
like to explain passing off and study the legal development of de facto
personality right in the UK and the reasons given by the courts in each of
these cases. One of the oldest cases where a celebrity wanted to protect his
image right was Tolley v JS Fry &
Sons Ltd, in 1931, where in the absence of a concrete protection right in
the UK, the claimant filed a case under the head of defamation and won the
case. However, it was recognized that there is no right of publicity to a
person in the UK.

Passing off refers to the tort of preventing one person from
misrepresenting someone’s else goods as being his own goods for the purpose of
financial gains. It is a common law tort and has not been codified in UK statute.
As the law developed, the classical trinity on passing off was laid down in
case of  Reckitt & Coleman v Borden, in 1990, which laid down the
following three tests for assessing passing off: (1) goodwill or reputation
must be attached to the products or services of the claimant (2)
misrepresentation must lead to the confusion as to the source of the goods and
services, and (3) this confusion must cause damage to the claimant.

Some of the earlier cases, such as McCulloch v Lewis A May which related to false endorsement and Lyngstad
v Anabas Products Ltd. which related to
merchandising of a famous character, refused to recognize personality
rights based on the criteria that there is no common field of activity and all
activities like in the present case can co-exist.

It was in Irvine v
Talksport, in the year 2002, that the courts indirectly recognized image
right of a famous person which was being used without authorization through a
false advertisement. The Courts held that to prove a false endorsement claim
the claimant had to prove that the claimant had a substantial goodwill and the
goods appeared to have been associated and approve by the claimant. Court
considered the numerous endorsements of Eddie Irivne, his goodwill and the
money he makes through his image and the loss which had been caused to him.
Though, courts made it clear there is no image right, however, if the same case
would been bought by any common man and not a celebrity the court would have
dismissed the case as there would have been no loss as such as the person would
really not have been able to monetize through his image or prove his goodwill
in the eyes of the public.

Major decision in terms of merchandising came in 2015, with Fenty v Arcadia, where Rihanna was successful in preventing the sale of a t-shirt by Topshop which had her image
on it, without her authorization. Owing to the facts of this case, the Court of
Appeal (COA) acknowledged the fact she is herself a fashion icon, she has a
goodwill attached to her name, looked at the numerous endorsements she does,
considered the fact that she runs her own fashion line. The COA also agreed to
the fact that people must have thought that she had approved the clothing. Thus,
here again she won the case but the COA clarified that there is no image right.
Pressing on the previous point again, if the same t-shirts were being sold with
the image of a common man on it, the courts would not have interfered with the
sale because as a common man there is no goodwill attached to that image or
personality and the market would not even be one percent of what it was for a
sale like that of Rihanna’s face image t-shirt because it is again the
celebrity status that matters which she has earned over years.

We now go on to see the moral and economic justification for
protection of celebrity personalities rights and why there should not be
protection to prevent use and each and every individual’s personality.

Locke’s labour theory, as stated in Savan Bains in his
article on Personality Rights can be applied to celebrity’s protection of their
personality rights. The main tenet of this theory is that every person is
entitled to the fruits of his labour and in this case, celebrities invest a lot
of time and energy to develop the kind of personality they have and to evoke a
particular kind of awe of themselves in the public eye. This view has also been
supported in Eastwood v Superior. Thus,
as per me when a common man, invests the time and energy which a celebrity does
invest to get that kind of status and earn a goodwill then even he can be
entitled to that level of protection but before that it is wrong to grant each
individual which a celebrity demands. What makes Rihanna, what she is today is
her hard work, her talent, the time, money and energy she puts to make her the
brand she is. Another justification can be provided by Hegel’s personality
justification theory, where he argues that there are certain fundamental
characteristics of a person which cannot be taken from him and are the universal
essence of a person’s self- consciousness and those are inalienable.

We can additionally provide the following economic
justifications talked about by Bains, in his article on personality rights. The
first argument is the incentive argument and the second argument is the
allocative efficiency argument. The former states that providing legal
protection for the financial value in one’s identity against commercial
exploitation of personality without consent creates a powerful incentive for investing
time and resources to develop the skills or achievements which are necessary
for public recognition. The latter is the more effective argument which is
related to competition law. It states that celebrity must have the exclusive
right to control over the distribution of their personality and it’s feature’s so
that they maximize the gains they can get through their doing and there are no  downfall in their returns due to any external
factors. Any other individual will have to first invest economically to build
something in the market which is worth reaping returns to be able to be
protected under any of the economic justifications.

On a joint reading of the moral and economic justifications,
it only right if the celebrity has a right to control the use of personality in
today’s day and age when they are constantly under the scanner with respect to
each and every activity they do. It is only time that UK takes inspiration from
the legislative scenario in US and Germany who have recognized the personality
rights of celebrities and have provided legal remedies to them when their
persona is being used without their authorization.  To conclude, a celebrity has a bankable image
which they have built on and worked on for years to protect, which they
otherwise also exploit then they enter into contracts with companies. Even when
UK had not recognized the presence of this right, litigations kept  on pouring in and one thing is clear, even if
the judiciary and legislation do not recognize this right, this phenomenon is
only going to increase under one or the other head.